A federal judge has struck down the government's efforts to prevent the release of any unclassified judicial records pertaining to the incarceration of detainees at the U.S. Naval Base in Guantanamo Bay, Cuba.
Thomas Hogan, U.S. District Court Judge for the District of Columbia, denied without prejudice the government's motion to shield unclassified judicial records concerning the Gitmo detainees, citing a limited First Amendment right and common law right of the public to access unclassified factual returns. Judge Hogan imposed a July 29, 2009, deadline for the government either pubicly to file a factual return or file under seal a marked copy of the unclassified factual return specifying for which information the government seeks protected status regarding each of the 107 petitioners.
Judge Hogan held that the government's broad attempt to seal every unclassified factual return disclosed as to the petitioners' cases usurped the Court's discretion to seal judicial records. In Boumediene v. Bush, 128 S.Ct.2229 (2008), the U.S. Supreme Court put in place a Protective Order dictating the storage, handling and control of documents and data in the Gitmo detainee cases that covered classified and unclassified material alike. The Protective Order permits the government to request the Court to label certain unclassified information as "protected" because of national security concerns.
Judge Hogan's Memorandum Opinion is in In re Guantanamo Bay Detainee Litigation (1:02-cv-00828-UNA).